Federal Sentencing

While prison reform advocates and family members of those serving extensive prison time for minor offenses have continued to speak out in favor of sentencing reductions, only recently are lawmakers onboard. Fortunately, for those spending time in jail and their families, there are a number of ways to have a federal prison sentence reduced.

Federal Sentencing Guidelines

The advisory Federal sentencing guidelines provide federal judges with sentencing ranges that they select from during the sentencing phase after a criminal conviction. The guidelines take into consideration a number of factors, including the seriousness of the individual's offense and the extent of their criminal record.

The guidelines assign one of 43 “offense levels” for the severity of the crime, and one of six criminal history categories. Taken together, this gives the judge a range of recommended sentencing time. When originally established, the Guidelines were mandatory, and judges had to impose a sentence within the recommended range. After the Supreme Court holding in United States v. Booker, however, the Guidelines became advisory only. Therefore, in every federal sentencing, a judge may depart well below, or well above, the recommended guidelines, for whatever reason he or she finds appropriate, as long as it is "reasonable." This is why it is so important for your federal defense lawyer to aggressively prepare for your sentencing, challenging all the possible sentencing enhancements, and addressing all of the statutory and other factors the Court can and should consider.

In Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court held that the Sentencing Guidelines are simply an advisory tool to be considered alongside other statutory considerations set forth in 18 U.S.C. § 3553(a). In two summary reversals, moreover, the Court stated unequivocally that the Guidelines cannot be used as a substitute for a sentencing court's independent determination of a just sentence based upon consideration of the statutory sentencing factors. Nelson v. United States, 129 S. Ct. 890 (2009); Spears v. United States, 129 S. Ct. 840 (2009). “Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable,” the Court held in Nelson. 129 S. Ct. at 892. “The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.” Id. at *2 (emphasis in original). In other words, sentencing courts commit legal error by using a Sentencing Guidelines range as a default to be imposed.

Congress has required federal courts to impose the least amount of imprisonment necessary to accomplish the purposes of sentencing as set forth in § 3553(a) of Title 18, United States Code. Those factors include (a) the nature and circumstances of the offense and the history and characteristics of the defendant; (b) the kinds of sentences available; (c) the advisory guideline range; (d) the need to avoid unwarranted sentencing disparities; (e) the need for restitution; and (f) the need for the sentence to reflect the following: the seriousness of the offense, promotion of respect for the law and just punishment for the offense, provision of adequate deterrence, protection of the public from future crimes and providing the defendant with needed educational or vocational training, medical care, or other correctional treatment. See 18 U.S.C. § 3553(a).

U.S. Sentencing Commission Reductions

The U.S. Sentencing Commission is able to recommend changes to the federal sentencing Guidelines, and several times in the past decade has reduced the Guidelines for federal drug offenses. The Commission is an independent agency under the judiciary made up of presidential appointees. Created by the Comprehensive Crime Control Act of 1984, the Commission is made up of seven voting members, including three federal judges.

The goals of the sentencing commission include establishing sentencing policies and practices; advising and assisting Congress in developing an efficient crime policy; and collecting and analyzing information on federal crime and sentencing issues.

In the future, the commission may vote on additional sentencing reduction guidelines and apply these changes retroactively, which could result in the release of many individuals serving time for drug offenses.

Eligibility for Sentencing Reductions

There are a few different statutes that provide for federal sentencing reductions. Whether an individual is eligible for one, or multiple sentencing reduction adjustments will depend on the individual's convictions, criminal history, and how they spent their time while incarcerated.

Good Time Credit

While it provides only a limited reduction, federal prisoners can earn up to 54 days off of their federal prison sentence each year for “good behavior.” This essentially means that if a prisoner follows the rules and does not get into trouble, they can have their sentence reduced by a few weeks for each year in prison. Every day that a prisoner does not have to spend behind bars can make a big difference.

Under 18 U.S.C. § 3624(b), a prisoner shall be released on the date of the expiration of the term of imprisonment, less any time credited toward the service of a sentence earned through satisfactory behavior. A prisoner serving more than a year in prison, and less than life imprisonment, can earn credit up to 54 days at the end of each year, beginning at the end of the first year served. Credit is subject to a determination by the Bureau of Prisons that the prisoner has displayed, “exemplary compliance with institutional disciplinary regulations.”

Of note: the release date of any particular prisoner can be found easily by going to www.bop.gov. The published release date already includes a calculation of good time credit, which the BOP applies automatically at the beginning of the incarceration, assuming everyone will qualify for it. If a disqualification event occurs, the release date will be pushed farther out.

Drugs Minus Two

Amendment 782 to the U.S. Sentencing Commission's guidelines is known as “drugs minus two.” The amendment went into effect on November 1, 2014. The commission also voted to make the amendments retroactive for individuals already sentenced. This amendment reduced the federal prison sentences for thousands of individuals serving time for drug offenses.

The “drugs minus two” amendment lowered the offense level of all drug crimes by two offense levels. This may result in a sentence reduction of two or more years for most individuals. However, some people serving time for mandatory minimum sentences, or under ACCA or Career Offender sentences, may not be eligible for these sentence reductions. It may only apply to inmates sentenced under the drug guideline (2D1.1) calculation.

Harris & Carmichael, PLLC's lawyers have expertise in this area of the law, having overseen district-wide projects in sentence reductions in this area since 2007. Contact our firm to find out more about seeking a "drugs minus two" reduction. We will be able to advise you on whether you may be eligible for the reduction, and how substantial it could be.

Substantial Assistance Reductions

If a defendant offers assistance in cooperating with government investigators and prosecutors, they may have an opportunity to have their own prison sentence reduced. If the individual cooperates with investigators before they are convicted, a federal prosecutor may file a “5k motion" at sentencing, so that the defendant receives a reduced sentence at their sentencing hearing. U.S. Sentencing Commission Guideline §5K1.1. This is, essentially, the court departing from the guidelines.

Alternatively, the prosecutors can elect to file a motion after an individual is convicted. These motions for reduced sentence are filed pursuant to Federal Rule of Criminal Procedure 35(b). Unfortunately, neither the Court, nor defense counsel, can force the prosecution to file these motions. Further, the Court has no power to reduce a defendant's sentence until the motion is filed by the prosecutor. Therefore, the power to reduce a defendant's sentence for cooperation lies entirely in the hands of the government.

Upon a motion by the government that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may then reduce the sentence, including below a mandatory minimum sentence. The reduction shall be determined by the court for reasons including:

Significance and usefulness of the defendant's assistance;

Truthfulness, completeness, and reliability of any information or testimony;

Nature and extent of the defendant's assistance;

Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; and

Timeliness of the defendant's assistance.

If you are expecting or hoping for a Rule 35(b) reduction, and are afraid it is going to languish without the government recognizing or rewarding your cooperation, there are efforts the lawyers at Harris & Carmichael can undertake on your behalf. We will request your original lawyer's file, give it a thorough examination, follow up with the agents, and prepare a comprehensive package in preparation for our meeting with the U.S. Attorney's office. Contact us today to discuss your options.

For more information about Rule 35(b) and 5k reductions, you may want to visit the United States Sentencing Commission website and read the recently issued report on the import of these reductions, here.

Future Sentencing Reductions

Although there is no immediate sentencing reduction legislation that is about to be signed into law, there is draft legislation making its way through Congress. The laws and policies surrounding sentencing reductions for federal crimes are continually changing. Your federal criminal defense lawyer will be able to advise you of any changing regulations, and any future changes that will likely affect your ability to have a federal prison sentence reduced.

Federal Criminal Defense Lawyers

Your experienced federal criminal defense attorneys have a history of successfully obtaining significant sentence reductions for their clients. If you or a loved one was convicted of simple drug possession, or multiple felony charges, a sentence reduction could get you back on track, reunited with your family. Your lawyers will be able to review your case, identify all possible mechanisms for a sentence reduction, and represent you in court. It is important to have the right lawyers on your side, who have experience getting their clients out from behind bars as quickly as possible.